NSW Sentencing Council

​When the remaining charge on the indictment would have been dealt with summarily

Supreme Court of NSW, 19 July 2018

R v Parker (No 3) [2018] NSWSC 1132

The offender was charged with manslaughter after injecting the deceased with heroin. He was also charged on the indictment with supply of a prohibited drug. He pleaded guilty to the supply offence. He was acquitted of manslaughter after a jury trial in the Supreme Court.

The Supreme Court, therefore, sentenced the offender for the supply offence which was the only offence left on the indictment. It was conceded that the amount of drug supplied was less than 1 gram. The sentencing judge noted that maximum penalty for the supply offence was 15 years. However, in the circumstances, the judge noted that, though strictly applicable, the maximum had relatively limited relevance because the offence would otherwise have been dealt with summarily in the Local Court. In the judge's view, the offender should not be prejudiced because the jury found him not guilty of manslaughter which led the supply offence being dealt with on indictment.

In sentencing the offender, the judge attributed significance to the principle that the protection of the community could not justify a sentence which is out of proportion to the seriousness of the offence committed. He observed that imposing a bond might protect the community and advance the offender's prospects of rehabilitation. However, in the context of the time the offender had already spent on remand, it would constitute an additional penalty which would be disproportionate to the seriousness of the supply offence. The judge regarded the objective seriousness of the offence as being relatively low and accordingly convicted the offender without imposing any other penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).